in the united states court of appeals for the third … may 18.pdf · no. 5:16-cv-04504-egs, hon....

No. 17-3581

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

FREEDOM FROM RELIGION FOUNDATION, INC., et al.,

Plaintiffs-Appellees,

v.

THE COUNTY OF LEHIGH,

Defendant-Appellant.

On Appeal from a Final Judgment of the United States District Court for the Eastern District of Pennsylvania

No. 5:16-cv-04504-EGS, Hon. Edward G. Smith

BRIEF OF RELIGIOUS AND CIVIL-LIBERTIES ORGANIZATIONS AS AMICI CURIAE SUPPORTING APPELLEES AND AFFIRMANCE

STEVEN M. FREEMAN DAVID L. BARKEY MELISSA GARLICK

Anti-Defamation League 605 Third Avenue New York, NY 10158 (212) 885-7859

DANIEL MACH American Civil Liberties

Union Foundation 915 15th Street, NW Washington, DC 20005 (202) 675-2330

RICHARD B. KATSKEE ANDREW L. NELLIS

Americans United for Separation of Church and State

1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234

JOHNATHAN SMITH SIRINE SHEBAYA NIMRA AZMI

Muslim Advocates P.O. Box 66408 Washington, DC 20035 (202) 897-2622

(Additional counsel listed on inside front cover)

WITOLD J. WALCZAK ACLU of Pennsylvania 247 Fort Pitt Boulevard, 2d Floor Pittsburgh, PA 15222 (412) 681-7864

AMRITH KAUR JULIAN DARWALL

Sikh Coalition 50 Broad Street, Suite 504 New York, NY 10004 (212) 655-3095

ALISON M. GILL American Atheists, Inc. 718 7th Street, NW Washington, DC 20001 (908) 276-7300

NICHOLAS J. LITTLE Center for Inquiry 1012 14th Street, NW,

Suite 205 Washington, DC 20005 (202) 733-5279

MONICA L. MILLER DAVID A. NIOSE

American Humanist Association

1821 Jefferson Place, NW Washington, DC 20036 (202) 238-9088

Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT

Amici are nonprofit entities. They have no parent corporations, and

no publicly held corporation owns any portion of any of them.

i

TABLE OF CONTENTS

Page

Table of Authorities ....................................................................................... ii

Interest of the Amici Curiae .......................................................................... 1

Introduction and Summary of Argument ...................................................... 2

Argument ........................................................................................................ 4

A. The Judgment Is Correct As a Matter of Law. ....................................... 4

B. The Controlling Jurisprudence Is Consistent With The History, Purpose, And Original Understanding Of The Establishment Clause. ............................................................................ 7

1. Our Nation is built on the recognition that governmental involvement with religion is a grave threat to religious freedom. ............................................................................................. 8

2. The Religion Clauses were designed to prevent even seemingly benign governmental involvement with religion. ........ 11

C. Enjoining Lehigh County’s Use Of The Latin Cross Advances Religious Freedom. ................................................................................ 19

1. Symbols have concrete, real-world effects. .................................... 19

2. The Latin cross is an unmistakable and powerful religious symbol. ............................................................................................ 22

3. Removing the Latin cross from the seal and flag respects all Lehigh residents. ....................................................................... 26

Conclusion .................................................................................................... 30

Appendix of Amici Curiae ............................................................................ 1a

ii

TABLE OF AUTHORITIES

Page(s) Cases

Am. Humanist Ass’n v. Md.–Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017) ............................................................. 29, 30

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) ................................................................................. 15

Borden v. Sch. Dist., 523 F.3d 153 (3d Cir. 2008) ....................................................................... 7

Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009) ......................................................................... 7

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ................................................................................... 4

Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ............................................................... 29

Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94 (1973) ................................................................................... 17

County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) ........................................................................... 26, 28

Davis v. Beason, 133 U.S. 333 (1890) ................................................................................. 15

Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011) ....................................................................... 6

Edwards v. Aguillard, 482 U.S. 578 (1987) ................................................................................... 4

Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993) ................................................................. 25

Engel v. Vitale, 370 U.S. 421 (1962) ........................................................................... 16, 30

Epperson v. Arkansas, 393 U.S. 97 (1968) ..................................................................................... 4

TABLE OF AUTHORITIES—Continued

iii

Estiverne v. La. State Bar Ass’n, 863 F.2d 371 (5th Cir. 1989) ................................................................... 18

Everson v. Bd. of Educ., 330 U.S. 1 (1947) .............................................................................. passim

Flast v. Cohen, 392 U.S. 83 (1968) ................................................................................... 15

Friedman v. Bd. of Cty. Comm’rs, 781 F.2d 777 (10th Cir. 1985) (en banc) ....................................... 5, 28, 29

Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991) ................................................... 5, 6, 25, 26

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) ................................................................................. 15

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948) ................................................................................. 16

Larson v. Valente, 456 U.S. 228 (1982) ................................................................................. 29

Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................................................... 6

Lynch v. Donnelly, 465 U.S. 668 (1984) ....................................................................... 6, 26, 27

McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) ............................................................ 4, 17, 18, 27, 28

Modrovich v. Allegheny County, 385 F.3d 397 (3d Cir. 2004) ....................................................................... 4

NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990) ......................................................... 17, 18

Okrand v. City of Los Angeles, 254 Cal. Rptr. 913 (Ct. App. 1989) .......................................................... 25

Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) ....................................................................... 7

Regan v. Time, Inc., 468 U.S. 641 (1984) ................................................................................. 19


iv

Reynolds v. United States, 98 U.S. 145 (1878) ............................................................................. 14, 15

Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir. 1995) ................................................................... 5

Salazar v. Buono, 559 U.S. 700 (2010) ................................................................................. 24

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ....................................................................... 4, 26, 27

Sch. Dist. v. Schempp, 374 U.S. 203 (1963) ..................................................................... 14, 28, 29

Stratechuk v. Bd. of Educ., 587 F.3d 597 (3d Cir. 2009) ................................................................... 6, 7

Student Gov’t Ass’n v. Bd. of Trs. of the Univ. of Mass., 868 F.2d 473 (1st Cir. 1989) .................................................................... 18

Texas v. Johnson, 491 U.S. 397 (1989) ........................................................................... 19, 20

Van Orden v. Perry, 545 U.S. 677 (2005) ................................................................................... 6

Wallace v. Jaffree, 472 U.S. 38 (1985) ..................................................................................... 4

Walz v. Tax Comm’n, 397 U.S. 664 (1970) ................................................................................. 15

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) .................................................................. 15

Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir. 2008) ................................................................. 6

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ..................................................................... 19, 20, 30

Constitution

U.S. Const. amend. I ............................................................................. passim


v

Miscellaneous

AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (2008) ................................................ 11

Association of Religion Data Archives, County Membership Report: Lehigh County, Pennsylvania (2010), http://bit.ly/2sf1g9V ..................................................................... 27

GEORGE WILLARD BENSON, THE CROSS: ITS HISTORY AND SYMBOLISM (1934) ....................................................... 24

Vincent Blasi, Essay, School Vouchers and Religious Liberty: Seven Questions from Madison’s Memorial and Remonstrance, 87 CORNELL L. REV. 783 (2002) ............................... 12, 13

JOHN CORRIGAN & WINTHROP S. HUDSON, RELIGION IN AMERICA (9th ed. 2018) ...................................................... 11

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Harvey C. Mansfield & Delba Winthrop eds. & trans. 2000) (1835) ...................... 16

EUSEBIUS, LIFE OF CONSTANTINE (Averil Cameron & Stuart G. Hall trans. 1999) ..................................... 23

THE FEDERALIST NOS. 10, 51 (James Madison) .......................................... 12

Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346 (2002) ............................................. 8, 9, 10

FOUNDING THE REPUBLIC: A DOCUMENTARY HISTORY (John J. Patrick ed., 1995) ...................................................................... 14

Letter from Benjamin Franklin to Richard Price (October 9, 1780), http://bit.ly/2jMsrVO ................................................. 11

EDWIN S. GAUSTAD, ROGER WILLIAMS (2005) ............................................... 9

Letter from Thomas Jefferson to Charles Clay (January 29, 1815), http://bit.ly/2yq06H4 .............................................. 15

Letter from Thomas Jefferson to Jeremiah Moore (August 14, 1800), http://bit.ly/2y9nvNn ................................................ 15

Thomas Jefferson, The Virginia Statute for Religious Freedom (Jan. 16, 1786) ......................................................................................... 14


vi

Kyle D. Johnson et al., Pilot Study of the Effect of Religious Symbols on Brain Function: Association with Measures of Religiosity, 1 SPIRITUALITY IN CLINICAL PRACTICE 82 (2014), http://bit.ly/2ifUo4M ................................................................................ 22

DOUGLAS KEISTER, STORIES IN STONE: A FIELD GUIDE TO CEMETERY SYMBOLISM AND ICONOGRAPHY (2004) ........................... 23, 24

JOHN LOCKE, A LETTER CONCERNING TOLERATION (James H. Tully ed., Hackett Publ’g Co. 1983) (1689) ........................... 10

BRUCE W. LONGENECKER, THE CROSS BEFORE CONSTANTINE: THE EARLY LIFE OF A CHRISTIAN SYMBOL (2015) ................................... 23

Letter from James Madison to William Bradford (April 1, 1774), http://bit.ly/2h57Xm5 ..................................................... 11

Letter from James Madison to Edward Livingston (July 10, 1822), http://bit.ly/2zUXhBT ..................................................... 8

James Madison, Memorial and Remonstrance Against Religious Assessments .................................................... 13, 15, 16

RICHARD P. MCBRIEN, CAESAR’S COIN: RELIGION AND POLITICS IN AMERICA (1987) ....................................... 9, 10

ALISTER E. MCGRATH, CHRISTIANITY: AN INTRODUCTION (2d ed. 2006) ................................................................................. 22, 23, 24

JON MEACHAM, AMERICAN GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION (2006) .................................... 12

Andy G. Olree, “Pride Ignorance and Knavery”: James Madison’s Formative Experiences with Religious Establishments, 36 HARV. J.L. & PUB. POL’Y 211 (2013) ....................... 12

JOHN O’SHAUGHNESSY & NICHOLAS JACKSON O’SHAUGHNESSY, PERSUASION IN ADVERTISING (2004) ....................................................... 20

NICHOLAS JACKSON O’SHAUGHNESSY, POLITICS AND PROPAGANDA (2004) ................................................... 19, 20

Merrill D. Peterson, Jefferson and Religious Freedom, ATLANTIC MONTHLY (Dec. 1994), http://theatln.tc/2idj7Xo ............. 13, 14

Pope Francis: The Cross Is the Gate of Salvation, VATICAN RADIO (Mar. 12, 2017), http://bit.ly/2JL4dCW ........................ 25


vii

Public Religion Research Institute, America’s Changing Religious Identity (Sept. 6, 2017), http://bit.ly/2wboSZW) ..................... 18

Frank S. Ravitch, Religious Objects as Legal Subjects, 40 WAKE FOREST L. REV. 1011 (2005) ........................................ 24, 26, 27

JONATHAN RILEY-SMITH, THE CRUSADES: A HISTORY (2d ed. 2005) ............................................................................................. 24

Philip A. Saigh, The Effect of Perceived Examiner Religion on the Digit Span Performance of Lebanese Elementary Schoolchildren, 109 J. SOC. PSYCHOL. 167 (1979) ............................ 21, 22

Philip A. Saigh, Religious Symbols and the WISC-R Performance of Roman Catholic Junior High School Students, 147 J. GENETIC PSYCHOL. 417 (1986) ............................... 21, 22

Philip A. Saigh et al., Religious Symbols and the WISC-R Performance of Roman Catholic Parochial School Students, 145 J. GENETIC PSYCHOL. 159 (1984) ............................................... 21, 22

RICHARD TAYLOR, HOW TO READ A CHURCH: A GUIDE TO SYMBOLS AND IMAGES IN CHURCHES AND CATHEDRALS (2003) ................................................................................. 24

Roger Williams, The Bloudy Tenent, of Persecution for Cause of Conscience (1644) ........................................................................ 9

COMPLETE WRITINGS OF ROGER WILLIAMS (Samuel L. Caldwell ed., 1963) ................................................................. 9

JOHN WITTE JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (4th ed. 2016) ...................... 12

1

INTEREST OF THE AMICI CURIAE1

Amici are religious and civil-liberties organizations that represent

diverse faiths and beliefs but are united in respecting the important but

distinct roles of religion and government in the life of the Nation. From the

time of the founding, the Establishment Clause and the religious and

philosophical ideals that motivated it have protected religious freedom for

all Americans by ensuring that government does not interfere in private

matters of conscience. Although the court below decided this case

correctly, it cast doubt on these essential constitutional safeguards. Amici

write to dispel any resulting confusion so that these protections are not

undermined. The amici, described more fully in the Appendix, are:

Americans United for Separation of Church and State.

American Atheists.

American Civil Liberties Union.

ACLU of Pennsylvania.

American Humanist Association.

Anti-Defamation League.

Center for Inquiry.

Central Conference of American Rabbis. 1 No counsel for a party authored this brief in whole or in part, and no person other than amici, their members, or their counsel made a monetary contribution intended to fund the brief’s preparation or submission. The parties have consented to this filing.

2

Disciples Center for Public Witness.

Disciples Justice Action Network.

Hadassah, the Women’s Zionist Organization of America, Inc.

Hindu American Foundation.

Interfaith Alliance Foundation.

Men of Reform Judaism.

Muslim Advocates.

National Council of Churches.

National Council of Jewish Women, Inc.

Sikh Coalition.

Union for Reform Judaism.

Women of Reform Judaism.

INTRODUCTION AND SUMMARY OF ARGUMENT

Religious symbols are powerful. Contemplating a symbol of one’s

own faith can be a profound experience. Encountering a government-

sponsored symbol of a faith to which one does not subscribe can likewise

be a profound experience—in a quite different way. When government

employs the primary symbol of one religion for its official insignia, it

communicates an impermissible message of favoritism and exclusion that

stigmatizes nonadherents while also demeaning the faith that it endorses.

3

The dictates of the Establishment Clause are therefore clear, as the

court below recognized: Lehigh County’s use of the Latin cross for its seal

and flag cannot withstand constitutional scrutiny.

But despite reaching the correct legal result, the court below devoted

a substantial portion of its opinion to questioning settled Supreme Court

and Circuit precedent, based on inaccurate descriptions of the history,

purpose, and fundamental objectives of the First Amendment. The court

characterized Establishment Clause jurisprudence as having drifted away

from “its drafters’ intent” and suggested that this case really ought to

come out the other way. App. 17, 21.

In actuality, the drafters of the First Amendment effected a

separation of government and religion as the means to ensure enduring

religious freedom. And as our Nation becomes increasingly pluralistic, that

aim is more crucial than ever. Use of the Latin cross—the preeminent

symbol of Christianity—for the official seal of Lehigh County sends

divisive and exclusionary messages that are directly contrary to this

fundamental objective: It co-opts the cross’s spiritual content for

governmental purposes, potentially offending Christians. It tells members

of other religions, or of no religion, that they are second-class citizens. And

it divides communities along religious lines. The judgment here is thus not

only doctrinally compelled but also historically justified and critically

4

important to prevent religiously based civil strife that would intrude on

our fundamental commitment to religious freedom for all.

ARGUMENT

A. The Judgment Is Correct As a Matter of Law.

To satisfy the Establishment Clause, state action must have a

primary purpose and principal effect that are secular. See Edwards v.

Aguillard, 482 U.S. 578, 583 (1987); Modrovich v. Allegheny County, 385

F.3d 397, 401 & n.1 (3d Cir. 2004). Lehigh County is thus required to

maintain strict “ ‘governmental neutrality between religion and religion,

and between religion and nonreligion’ ” (McCreary County v. ACLU of Ky.,

545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104

(1968))) and is forbidden to take action that “an objective observer . . .

would perceive . . . as a state endorsement” of religion (Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472

U.S. 38, 76 (1985) (O’Connor, J., concurring in the judgment)); accord

Modrovich, 385 F.3d at 401).

“The Latin Cross . . . is the principal symbol of Christianity around

the world . . . .” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S.

753, 792 (1995) (Souter, J., concurring in part and concurring in the

judgment). Hence, the courts of appeals have repeatedly held that

depiction of the cross as part of a city or county seal violates the

5

Establishment Clause. See, e.g., Robinson v. City of Edmond, 68 F.3d

1226, 1232 (10th Cir. 1995) (“The religious significance and meaning of the

Latin or Christian cross are unmistakable.”); Friedman v. Bd. of Cty.

Comm’rs, 781 F.2d 777, 782 (10th Cir. 1985) (en banc) (“[T]he seal . . .

conveys a strong impression to the average observer that Christianity is

being endorsed.”). “[A] Latin cross on the corporate seal . . . endorses or

promotes a particular religious faith. It expresses an unambiguous choice

in favor of Christianity. It presents to any observer a clear endorsement of

all those beliefs associated with a Latin cross in violation of the

Establishment Clause of the first amendment.” Harris v. City of Zion, 927

F.2d 1401, 1412 (7th Cir. 1991).

Here, the County’s seal was designed with an unambiguously

religious purpose (see App. 26), and its display has the overwhelmingly

religious effect of communicating to observers that the County favors

Christianity (see App. 28). Notably, the county commissioner who designed

the seal publicly stated that the “ ‘huge cross’ . . . signifies ‘Christianity

and the God-fearing people . . . of [Lehigh] County.’ ” App. 9 (alteration in

original). And in 2015, the commissioners voted to retain the design “to

honor [Lehigh County’s] original settlers who were Christian.” App. 26.

Thus, this case is an easy one: The County’s seal and flag

straightforwardly violate the Establishment Clause. See, e.g., Harris, 927

6

F.2d at 1415 (“[T]he City may not honor its history by retaining the

blatantly sectarian seal, emblem, and logo. These symbols transcend mere

commemoration, and effectively endorse or promote the Christian faith.”);

see also Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1034 (10th Cir.

2008) (“The putative secular explanation of the Christian cross[,] . . . that

it reflected the Christian heritage of the area . . . , is not a secular

explanation at all.”).

The County contends (at Br. 44) that the Supreme Court has “long

abandoned” the jurisprudence employed in Robinson, Harris, Friedman,

Modrovich, and the Supreme Court’s own decision in McCreary, offering

up (at Br. 38) what the County describes as the contrary authority of “[t]he

most recent Supreme Court ‘religious display’ case,” Van Orden v. Perry,

545 U.S. 677 (2005). But the Supreme Court issued the “recent” decision in

Van Orden and the supposedly “long abandoned” decision in McCreary on

the same day. The argument that one supplanted the other is therefore

meritless. And since that day, this Court has consistently, and correctly,

continued to follow settled Supreme Court precedent by applying the tests

described in Lemon v. Kurtzman, 403 U.S. 602 (1971), and Lynch v.

Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring). See, e.g., Doe

v. Indian River Sch. Dist., 653 F.3d 256, 283 (3d Cir. 2011) (applying

Lemon and endorsement tests); Stratechuk v. Bd. of Educ., 587 F.3d 597,

7

604, 608 (3d Cir. 2009) (same); Busch v. Marple Newtown Sch. Dist., 567

F.3d 89, 100 (3d Cir. 2009) (applying Lemon test); Borden v. Sch. Dist., 523

F.3d 153, 175 (3d Cir. 2008) (applying endorsement test); Petruska v.

Gannon Univ., 462 F.3d 294, 311 (3d Cir. 2006) (applying Lemon test). The

district court’s identification and application of controlling authority (see

App. 21) were correct as a matter of law.

B. The Controlling Jurisprudence Is Consistent With The History, Purpose, And Original Understanding Of The Establishment Clause.

Yet while correctly recognizing that long-standing, unequivocal,

binding precedent compels the conclusion that the County’s seal and flag

violate the Establishment Clause, the court below expressed disagreement

with that precedent, arguing that, beginning with Everson v. Board of

Education, 330 U.S. 1 (1947), the Supreme Court set the federal courts on

a path that “does not accurately reflect the plain text of the Establishment

Clause or its drafters’ intent” (App. 18, 21). We respectfully submit that

the district court’s views concerning the First Amendment and its history

are mistaken; and the implications of that misunderstanding threaten the

Amendment’s essential protections for religious freedom.

8

1. Our Nation is built on the recognition that governmental involvement with religion is a grave threat to religious freedom.

The architects of the First Amendment recognized that “religion &

Govt. will both exist in greater purity, the less they are mixed together.”

Letter from James Madison to Edward Livingston (July 10, 1822),

http://bit.ly/2zUXhBT. This principle, that religion flourishes best when

government is least involved, has deep roots in theology and political

philosophy going back well before the founding of the Republic. Grounded

in the understanding that freedom of conscience is an essential component

of faith, as well as the experience of a long, sad history of religiously based

strife and oppression, the constitutional principle of separation recognizes

that governmental support for religion corrodes true belief, makes

religious denominations and houses of worship beholden to the state, and

places subtle—or not so subtle—coercive pressure on individuals and

groups to conform.

The notion of freedom of conscience as a moral virtue traces back to

the thirteenth-century teachings of Thomas Aquinas, who wrote that

conscience must be a moral guide and that acting against one’s conscience

constitutes sin. See Noah Feldman, The Intellectual Origins of the

Establishment Clause, 77 N.Y.U. L. REV. 346, 356–57 (2002). Martin

Luther built on these ideas, teaching that the Church lacks authority to

9

bind believers’ consciences on spiritual questions: “the individual himself

c[an] determine the content of his conscience based on scripture and

reason.” Id. at 358–59. And John Calvin preached that individual

conscience absolutely deprives civil government of authority to dictate in

matters of faith. See id. at 359–61.

These tenets found expression in the New World in the teachings of

Roger Williams, the Baptist theologian and founder of Rhode Island.

Williams preached that, for religious belief to be genuine, people must

come to it of their own free will. Coerced belief and punishment of dissent

are anathema to faith; religious practices are sinful unless performed

“with[ ] faith and true persuasion that they are the true institutions of

God.” Roger Williams, The Bloudy Tenent, of Persecution for Cause of

Conscience (1644), reprinted in 3 COMPLETE WRITINGS OF ROGER

WILLIAMS 12 (Samuel L. Caldwell ed., 1963). When government involves

itself in matters of religion, even if merely to express support for a

particular faith or set of beliefs, Williams warned, the coercive authority of

the state impedes the exercise of free will, while also causing bloody civil

strife. Thus, Williams taught, keeping religion and government separate is

crucial both to protect religious dissenters against persecution and to

safeguard religion itself against impurity and dilution. See id.; EDWIN S.

GAUSTAD, ROGER WILLIAMS 13, 59, 70 (2005); RICHARD P. MCBRIEN,

10

CAESAR’S COIN: RELIGION AND POLITICS IN AMERICA 248 n.37 (1987)

(“[T]he Jews of the Old Testament and the Christians of the New

Testament ‘opened a gap in the hedge or wall of separation between the

garden of the church and the wilderness of the world. . . . [I]f He will ever

please to restore His garden and paradise again, it must of necessity be

walled in peculiarly unto Himself from the world.’ ” (quoting Williams)).

Not only did this theology shape the development of religion in

America, but it became the foundation for the political thought on which

our Nation was built. Notably, for example, John Locke incorporated the

view into his argument for religious toleration:

Whatsoever may be doubtful in Religion, yet this at least is certain, that no Religion, which I believe not to be true, can be either true, or profitable unto me. In vain therefore do Princes compel their Subjects to come into their Church-communion, under pretence of saving their Souls. . . . [W]hen all is done, they must be left to their own Consciences.

JOHN LOCKE, A LETTER CONCERNING TOLERATION 38 (James H. Tully ed.,

Hackett Publ’g Co. 1983) (1689). Based on this understanding, and the

related concern that bloodshed follows when government intrudes into

matters of faith, Locke reasoned that “civil government” should not

“interfere with matters of religion except to the extent necessary to

preserve civil interests.” Feldman, supra, at 368.

11

Many of this Nation’s founders took to heart Williams’s and Locke’s

teachings. Benjamin Franklin, for example, stated:

When a Religion is good, I conceive that it will support itself; and when it cannot support itself, and God does not care to support [it], so that its Professors are oblig’d to call for the help of the Civil Power, ’tis a Sign, I apprehend, of its being a bad one.

Letter from Benjamin Franklin to Richard Price (October 9, 1780),

http://bit.ly/2jMsrVO. And James Madison viewed governmental support

for religion as “[r]eligious bondage [that] shackles and debilitates the mind

and unfits it for every noble enterprize.” Letter from James Madison to

William Bradford (April 1, 1774), http://bit.ly/2h57Xm5.

2. The Religion Clauses were designed to prevent even seemingly benign governmental involvement with religion.

a. Though the United States was more homogeneous in 1789 than

today, our Nation was, from the beginning, home to unprecedented

religious diversity. Congregationalists maintained a stronghold in New

England; Anglicans dominated religious life in the South; and Quakers

influenced society significantly in Pennsylvania. See AKHIL REED AMAR,

THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 45 (2008); JOHN

CORRIGAN & WINTHROP S. HUDSON, RELIGION IN AMERICA 46–51 (9th ed.

2018). And the founding generation well knew that “[t]he centuries

immediately before and contemporaneous with the colonization of America

12

had been filled with turmoil, civil strife, and persecutions, generated in

large part by established sects determined to maintain their absolute

political and religious supremacy.” Everson, 330 U.S. at 8–9.

The founders thus understood that they were creating a government

for a diverse group of people and faiths (see JON MEACHAM, AMERICAN

GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION 101

(2006)), and that religious freedom for all would necessarily require

acceptance of religious pluralism (see JOHN WITTE JR. & JOEL A. NICHOLS,

RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 49 (4th ed.

2016) (citing THE FEDERALIST NOS. 10, 51 (James Madison))).

b. Experience with persecution of Baptists by Virginia’s established

Anglican Church further shaped the notion of freedom of conscience as a

critical foundation for the new political order. See Andy G. Olree, “Pride

Ignorance and Knavery”: James Madison’s Formative Experiences with

Religious Establishments, 36 HARV. J.L. & PUB. POL’Y 211, 214–15, 226–

27, 266–67 (2013). Thus, in the Virginia legislature’s debate in 1784 over

Patrick Henry’s “Bill Establishing a Provision for Teachers of the

Christian Religion,” these principles triumphed over a proposal to fund

religious education with a property-tax levy. See Vincent Blasi, Essay,

School Vouchers and Religious Liberty: Seven Questions from Madison’s

Memorial and Remonstrance, 87 CORNELL L. REV. 783, 783–84 & n.3

13

(2002). Madison strenuously objected to Henry’s bill as an offense against

individual conscience, a threat to the health of civil government, and a

gross intrusion into church governance and the free development of church

doctrine. See, e.g., James Madison, Memorial and Remonstrance Against

Religious Assessments ¶¶ 12–13, 15, reprinted in Everson, 330 U.S. at 63–

72 (appendix to dissent of Rutledge, J.) (arguing that state support for

religion would be “adverse to the diffusion of the light of Christianity,”

would “tend to enervate the laws in general, . . . slacken[ing] the bands of

Society,” and would infringe “ ‘the equal right of every citizen to the free

exercise of his Religion according to the dictates of conscience’ ”).

Drawing on Locke’s philosophy (see Blasi, supra, at 789–90 & n.28)

and its theological and political underpinnings, Madison argued that

religion “must be left to the conviction and conscience of every man”

(Madison, Memorial and Remonstrance ¶ 1). Governmental support for

religion would only “weaken in those who profess [the benefitted] Religion

a pious confidence in its innate excellence,” while “foster[ing] in those who

still reject it, a suspicion that its friends are too conscious of its fallacies, to

trust it to its own merits.” Id. ¶ 6.

These same arguments also spurred passage of Thomas Jefferson’s

Bill for Establishing Religious Freedom. See Merrill D. Peterson, Jefferson

and Religious Freedom, ATLANTIC MONTHLY (Dec. 1994), http://theatln.tc

14

/2idj7Xo. The Bill forthrightly declared it an “impious presumption of

legislators and rulers, civil as well as ecclesiastical, . . . [to] assume[ ]

dominion over the faith of others, setting up their own opinions and modes

of thinking as the only true and infallible, and as such endeavouring to

impose them on others.” Thomas Jefferson, The Virginia Statute for

Religious Freedom (Jan. 16, 1786), reprinted in FOUNDING THE REPUBLIC:

A DOCUMENTARY HISTORY 94–95 (John J. Patrick ed., 1995). The Bill

recognized that governmental favoritism “tends only to corrupt the

principles of that religion it is meant to encourage, by bribing with a

monopoly of worldly honours and emoluments, those who will externally

profess and conform to it.” Id. at 95. In short, religion neither requires nor

benefits from the support of the state: “truth is great and will prevail if left

to herself.” Id.

c. As the Supreme Court has explained: “the views of Madison and

Jefferson, preceded by Roger Williams, came to be incorporated . . . in the

Federal Constitution.” Sch. Dist. v. Schempp, 374 U.S. 203, 214 (1963)

(footnote omitted). Specifically, “the provisions of the First Amendment, in

the drafting and adoption of which Madison and Jefferson played such

leading roles, had the same objective and were intended to provide the

same protection against governmental intrusion on religious liberty as the

Virginia statute.” Everson, 330 U.S. at 13 (citing Reynolds v. United

15

States, 98 U.S. 145, 164 (1878); Watson v. Jones, 80 U.S. (13 Wall.) 679

(1871); Davis v. Beason, 133 U.S. 333, 342 (1890)). Jefferson and Madison’s

vision thus defined the original understanding of the Establishment

Clause,2 which is that religious freedom would be frustrated by what

Jefferson termed the “loathsome combination of church and state” (Letter

from Thomas Jefferson to Charles Clay (January 29, 1815), http://bit.ly

/2yq06H4).

As Jefferson explained, historically “the clergy, by getting

themselves established by law, & ingrafted into the machine of

government, have been a very formidable engine against the civil &

religious rights of man.” Letter from Thomas Jefferson to Jeremiah Moore

(August 14, 1800), http://bit.ly/2y9nvNn. Or as Madison put it:

“[E]xperience witnesseth that ecclesiastical establishments, instead of

maintaining the purity and efficacy of Religion, have had a contrary

operation. . . . What have been [their] fruits? More or less in all places,

pride and indolence in the Clergy; ignorance and servility in the laity; in

2 See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 184 (2012) (identifying Madison as “the leading architect of the religion clauses of the First Amendment”); Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 141 (2011) (same); Walz v. Tax Comm’n, 397 U.S. 664, 705–06 (1970) (opinion of Harlan, J.) (same); Flast v. Cohen, 392 U.S. 83, 103 (1968) (same).

16

both, superstition, bigotry and persecution.” Madison, Memorial and

Remonstrance ¶ 7.

“[T]he Virginia struggle for religious liberty thus became warp and

woof of our constitutional tradition, not simply by the course of history,

but by the common unifying force of Madison’s life, thought and

sponsorship.” Everson, 330 U.S. at 39 (Rutledge, J., dissenting). See

generally ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 284 (Harvey

C. Mansfield & Delba Winthrop eds. & trans. 2000) (1835) (observing

American understanding that religion “cannot share the material force of

those who govern without being burdened with a part of the hatreds to

which they give rise”).

Hence, in recognition “that a union of government and religion tends

to destroy government and to degrade religion” (Engel v. Vitale, 370 U.S.

421, 431 (1962)), “the First Amendment rests upon the premise that both

religion and government can best work to achieve their lofty aims if each

is left free from the other within its respective sphere” (Illinois ex rel.

McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948)). The Establishment

Clause “stands as an expression of principle on the part of the Founders of

our Constitution that religion is too personal, too sacred, too holy, to

permit its ‘unhallowed perversion’ by a civil magistrate.” Engel, 370 U.S.

at 432 (quoting Madison, Memorial and Remonstrance ¶ 5). And it reflects

17

Madison and Jefferson’s “plan of preserving religious liberty to the fullest

extent possible in a pluralistic society,” allowing religion to flourish while

quelling the civil strife that pluralism can so easily engender. See

McCreary, 545 U.S. at 882 (O’Connor, J., concurring).

d. The court below voiced a different set of principles, from which it

concluded that the only valid concerns of the Establishment Clause are

formal compulsion of religious practice and formal designation of an

official church of the United States. See App. 16–17, 21, 29.

In addition to being at odds with the Framers’ conceptions of

conscience, religious freedom, and the dangers of religiously based social

strife, which together animate the Establishment Clause, the district court

appears to misunderstand the First Amendment as conferring rights on

government, when as a matter of law it confers rights against government.

Compare App. 19 n.2 (“Lemon’s unpredictable application, coupled with

the threat of having to pay plaintiffs’ attorneys’ fees pursuant to 42 U.S.C.

§ 1988, . . . chill religious expression [by government] that the First

Amendment might protect”), with Columbia Broad. Sys., Inc. v.

Democratic Nat’l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring)

(“The First Amendment protects . . . from governmental interference; it

confers no analogous protection on the Government.”), NAACP v. Hunt,

891 F.2d 1555, 1565 (11th Cir. 1990) (“[T]he First Amendment protects

18

citizens’ speech only from government regulation; government speech itself

is not protected by the First Amendment.”), Student Gov’t Ass’n v. Bd. of

Trs. of the Univ. of Mass., 868 F.2d 473, 481 (1st Cir. 1989) (“a state

entity[ ] itself has no First Amendment rights”), and Estiverne v. La. State

Bar Ass’n, 863 F.2d 371, 379 (5th Cir. 1989) (“the first amendment does

not protect government speech”).

e. As this Nation becomes ever more religiously diverse (see Public

Religion Research Institute, America’s Changing Religious Identity (Sept.

6, 2017), http://bit.ly/2wboSZW), the fundamental constitutional safe-

guards for the freedom to believe, or not, and to worship, or not, according

to the dictates of conscience are more important today than ever before. To

the extent, therefore, that there is a suggestion here that the

constitutional jurisprudence of the past seventy years was ill-advised and

should be rejected, amici can think of no better rejoinder than the

following from Justice O’Connor:

At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. . . . Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

McCreary, 545 U.S. at 882 (O’Connor, J., concurring).

19

C. Enjoining Lehigh County’s Use Of The Latin Cross Advances Religious Freedom.

Settled law and the principles undergirding it forbid Lehigh

County’s appropriation and use of the Latin cross for good reason: Official

religious displays send impermissible and damaging messages both to

those for whom the symbols are sacred and to those for whom they are not.

1. Symbols have concrete, real-world effects.

Symbols have power. They encapsulate many layers of meaning and

often communicate complex ideas more effectively and more forcefully

than mere words. “The use of an emblem or flag to symbolize some system,

idea, institution, or personality, is a short cut from mind to mind.” W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943); see also Regan v.

Time, Inc., 468 U.S. 641, 678 (1984) (Brennan, J., concurring in part and

dissenting in part) (“ ‘one picture is worth a thousand words’ ”). Symbols

“attract public notice, they are remembered for decades or even centuries

afterwards. A symbol speaks directly to the heart . . . .” NICHOLAS

JACKSON O’SHAUGHNESSY, POLITICS AND PROPAGANDA 102 (2004). Images

of the Stars and Stripes rising from atop Mount Suribachi on Iwo Jima in

1945, and from the rubble of the World Trade Center in 2001, capture

American resilience more eloquently than words ever could. “Pregnant

with expressive content, the flag as readily signifies this Nation as does

20

the combination of letters found in ‘America.’ ” Texas v. Johnson, 491 U.S.

397, 405 (1989). That is why “[c]auses and nations, political parties, lodges

and ecclesiastical groups seek to knit the loyalty of their followings to a

flag or banner, a color or design.” Barnette, 319 U.S. at 632.

Symbols play equally influential roles in more mundane aspects of

life. In commerce, for example, corporate branding is common because

frequent viewing conditions consumers to respond favorably to a

company’s products. See JOHN O’SHAUGHNESSY & NICHOLAS JACKSON

O’SHAUGHNESSY, PERSUASION IN ADVERTISING 63, 67 (2004);

O’SHAUGHNESSY, supra, at 102. And the more often one views a symbol,

the stronger its effect: “Making a brand familiar by repeated exposure

through advertising encourages its adoption.” O’SHAUGHNESSY &

O’SHAUGHNESSY, supra, at 63. Repeated exposure “induces more

familiarity and, as a consequence, greater liking” for what is symbolized,

“independent of any conscious cognitive appraisal” of quality or value. Id.

at 63, 67. In other words, simple, evocative symbols foster special affinity

for what is being represented, in ways that empirical evidence and

rational argument often cannot.

What is true for symbols generally is doubly so for religious ones,

many of which are known the world over, conveying at a glance millennia

21

of shared history and collective aspirations and triumphs to those who

hold them dear—and at times the opposite messages to those who do not.

Empirical research confirms that religious symbols can affect

behavior, even when they are displayed with no intent to proselytize,

persuade, or coerce. Viewing religious symbols, for example, has

statistically significant effects on students’ academic performance:

Researchers found in controlled experiments that Catholic-school students

did systematically better on standardized tests when the examiner wore a

cross and systematically worse when the examiner wore a Star of David.

See Philip A. Saigh, Religious Symbols and the WISC-R Performance of

Roman Catholic Junior High School Students, 147 J. GENETIC PSYCHOL.

417, 417–18 (1986); Philip A. Saigh et al., Religious Symbols and the

WISC-R Performance of Roman Catholic Parochial School Students, 145 J.

GENETIC PSYCHOL. 159, 159–62 (1984). And in religiously diverse

Lebanon, both Christian and Muslim students scored better than expected

when the examiner wore the symbol of the students’ faith and worse than

expected when the examiner wore the symbol of the other faith. Philip A.

Saigh, The Effect of Perceived Examiner Religion on the Digit Span

Performance of Lebanese Elementary Schoolchildren, 109 J. SOC. PSYCHOL.

167, 168–170 (1979). The researchers attributed these effects to students’

anxiety over “confessional conflict” with an authority figure, on the one

22

hand, and comfort in the presence of a coreligionist, on the other. See

Saigh, Junior High, supra, at 418; Saigh, Parochial School Students,

supra, at 163; Saigh, Lebanese Elementary Schoolchildren, supra, at 170–

71. But regardless of the psychological mechanism at work, the studies

revealed that even slight exposure to religious symbols displayed by

authority figures affects students’ performance.

These effects are not limited to children. Research has also revealed

that exposure to religious symbols that adult test subjects viewed as

negative (such as an inverted pentagram) suppressed brain activity,

whereas exposure to religious symbols that the subjects regarded as

positive (such as a dove) did not. See Kyle D. Johnson et al., Pilot Study of

the Effect of Religious Symbols on Brain Function: Association with

Measures of Religiosity, 1 SPIRITUALITY IN CLINICAL PRACTICE 82, 82, 84

(2014), http://bit.ly/2ifUo4M.

Religious symbols, in short, have real, measurable effects both on

adherents and on nonadherents.

2. The Latin cross is an unmistakable and powerful religious symbol.

Few things are more universally culturally familiar—to Christians

and non-Christians alike—than the Latin cross. See, e.g., ALISTER E.

MCGRATH, CHRISTIANITY: AN INTRODUCTION 320 (2d ed. 2006). For nearly

23

two thousand years, the cross has been inextricably and inexorably linked

with Christianity. See id. (“The cross has been the universally

acknowledged symbol of the Christian faith from a very early period

. . . .”).

It achieved prominence about three hundred years after Jesus’

death, when the Roman Emperor Constantine adopted Christianity for the

Empire. Constantine’s embrace of Christianity related concretely to the

symbolic power of the cross. See BRUCE W. LONGENECKER, THE CROSS

BEFORE CONSTANTINE: THE EARLY LIFE OF A CHRISTIAN SYMBOL 3 (2015).

According to the early Church historian Eusebius, Constantine, while

praying, “saw with his own eyes the trophy of a cross of light in the

heavens, above the sun, and bearing the inscription, ‘Conquer by this.’ ”

EUSEBIUS, LIFE OF CONSTANTINE 1:28 (Averil Cameron & Stuart G. Hall

trans. 1999). That night, Eusebius reported, Jesus appeared to

Constantine in a dream “with the same sign which he had seen in the

heavens, and commanded him to make a likeness of that sign . . . and to

use it as a safeguard in all engagements with his enemies.” Id. at 1:29.

Since that time, the cross has been consistently identified with

Christianity. See DOUGLAS KEISTER, STORIES IN STONE: A FIELD GUIDE TO

CEMETERY SYMBOLISM AND ICONOGRAPHY 173–74 (2004). It was used

during the Crusades to distinguish the crusaders from opposing forces. See

24

JONATHAN RILEY-SMITH, THE CRUSADES: A HISTORY 15–16 (2d ed. 2005).

And the cross was vitally important to Medieval and Renaissance art,

when “the painted picture was invaluable as an interpreter and exponent

of religious truths,” because it communicated the Church’s message of

redemption. GEORGE WILLARD BENSON, THE CROSS: ITS HISTORY AND

SYMBOLISM 121, 126 (1934). Thus, the countless portrayals of Jesus’ death

always included the cross, not just as representational art, but to

disseminate Church doctrine. See MCGRATH, supra, at 321. For similar

reasons, crosses have historically adorned and been design elements of

churches, inside and out. See id.; RICHARD TAYLOR, HOW TO READ A

CHURCH: A GUIDE TO SYMBOLS AND IMAGES IN CHURCHES AND

CATHEDRALS 46–47 (2003).

What has been true since Constantine’s time remains true today:

The cross is not merely a symbol of Christianity; it is the symbol. See

MCGRATH, supra, at 320; Salazar v. Buono, 559 U.S. 700, 725 (2010)

(Alito, J., concurring in part and concurring in the judgment) (“The cross is

of course the preeminent symbol of Christianity”). It is “hard to think of a

symbol more closely associated with a religion than the cross is with

Christianity.” KEISTER, supra, at 172. It is a “pure religious object” (Frank

S. Ravitch, Religious Objects as Legal Subjects, 40 WAKE FOREST L. REV.

1011, 1023–24 (2005))—the physical embodiment of Christian tenets of

25

resurrection and redemption (see Ellis v. City of La Mesa, 990 F.2d 1518,

1525 (9th Cir. 1993) (“[T]he Latin cross . . . ‘represents with relative clarity

and simplicity the Christian message of the crucifixion and resurrection of

Jesus Christ, a doctrine at the heart of Christianity.’ ” (quoting Okrand v.

City of Los Angeles, 254 Cal. Rptr. 913, 922 (Ct. App. 1989))). Pope

Francis, for example, has said that “[t]he Christian Cross is not something

to hang in the house ‘to tie the room together’ . . . or an ornament to wear,

but a call to that love, with which Jesus sacrificed Himself to save

humanity from sin and evil.” Pope Francis: The Cross Is the Gate of

Salvation, VATICAN RADIO (Mar. 12, 2017), http://bit.ly/2JL4dCW.

The potency of the cross for transmitting complex messages and

encouraging Christian religious practice is why institutions and

individuals choose to display it. Thus, in Harris, supra, a city council

included a cross in the city seal because “ ‘[t]he Cross represents

everything to us in Redemption, Salvation, Healing, Cleaning and Keeping

Power.’ ” 927 F.2d at 1404 (quoting council minutes). The Seventh Circuit,

recognizing that the cross is among “the most dominant and recurring

images of Christianity,” thus held that the city’s “seal, emblem, and logo

inevitably create an unmistakable impression that the local government

tacitly endorses Christianity.” Id. at 1414.

26

3. Removing the Latin cross from the seal and flag respects all Lehigh residents.

a. The County’s seal and flag, like the seals and symbols in Harris

and the other cases cited above, employ the cross’s clear, unequivocal

message to communicate governmental favoritism for Christianity. See,

e.g., id. (“The . . . seal presents the quintessential violation of the ‘long-

standing constitutional principle that government may not engage in a

practice that has the effect of promoting or endorsing religious beliefs.’ ”

(quoting County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492

U.S. 573, 621 (1989) (opinion of Blackmun, J.))). Not only is that message

forbidden by the Establishment Clause, but it disrespects and infringes

the religious freedom of Lehigh residents, Christian and non-Christian

alike.

As its history makes clear, the cross communicates and reinforces

the spiritual identity and sense of moral worth of believers. See Ravitch,

supra, at 1023–24. At the same time, governmental “sponsorship of a

religious message . . . sends the ancillary message to members of the

audience who are nonadherents ‘that they are outsiders, not full members

of the political community, and an accompanying message to adherents

that they are insiders, favored members of the political community.’ ”

27

Santa Fe, 530 U.S. at 309–10 (quoting Lynch, 465 U.S. at 688 (O’Connor,

J., concurring)).

Lehigh County is home to considerable religious diversity. See

Association of Religion Data Archives, County Membership Report: Lehigh

County, Pennsylvania (2010), http://bit.ly/2sf1g9V (listing 63 different

religious traditions represented). To many Jews, Muslims, Hindus, Sikhs,

Buddhists, atheists, and others, the County’s prominent display of the

central symbol of Christianity is a strong message of exclusion: It officially

communicates that ‘Lehigh County is a Christian community; those who

don’t share our faith do not belong.’ That message is not just wrong but

dangerous. For “nothing does a better job of roiling society” than “when

the government weighs in on one side of religious debate.” McCreary, 545

U.S. at 876.

And it is not just religious minorities and nonbelievers who may be

alienated and pressured by the Latin cross here. By appropriating the

preeminent symbol of Christianity to define Lehigh County as a Christian

polity, rather than allowing individuals and families to form their own

faith communities, the County intrudes on and denigrates the cross’s

sacred status. See Ravitch, supra, at 1067. And it puts a thumb on the

scale in favor of a preferred set of religious beliefs, thus interfering with

theological commitments to the free exercise of conscience. After all,

28

“[v]oluntary religious belief and expression may be as threatened when

government takes the mantle of religion upon itself as when government

directly interferes with private religious practices.” McCreary, 545 U.S. at

883 (O’Connor, J., concurring). The First Amendment makes individuals,

not government, the final arbiters in religious matters. See id.

b. The view of the court below, that the County’s message of

exclusion ought to be constitutional because the seal does not “coerc[e]

[citizens] into adhering to or participating in religion” (App. 21), overlooks

the real pressure to conform. For when a seal with a Latin cross is

displayed pervasively on government buildings and official vehicles and

documents (see App. 10), “[a] follower of any non-Christian religion might

well question [County officials’] ability to provide even-handed treatment”;

and those “with no strong religious conviction might conclude that secular

benefit could be obtained by becoming a Christian” (Friedman, 781 F.2d at

782 (“A person approached by officers leaving a patrol car emblazoned

with this seal could reasonably assume that the officers were Christian

police, and that the organization they represented identified itself with the

Christian God.”); cf. ACLU Greater Pittsburgh, 492 U.S. at 661

(recognizing coercive effect of “the permanent erection of a large Latin

cross on the roof of city hall”) (Kennedy, J., concurring in part and

dissenting in part)). “ ‘When the power, prestige, and financial support of

29

government is placed behind a particular religious belief, the indirect

coercive pressure upon religious minorities to conform to the prevailing

officially approved religion is plain.’ ” Friedman, 781 F.2d at 782 (quoting

Schempp, 374 U.S. at 221). To suggest otherwise is to ignore human

nature.

“From the beginning, this nation’s conception of religious liberty

included, at a minimum, the equal treatment of all religious faiths without

discrimination or preference.” Colo. Christian Univ. v. Weaver, 534 F.3d

1245, 1257 (10th Cir. 2008); see Larson v. Valente, 456 U.S. 228, 244 (1982)

(“The clearest command of the Establishment Clause is that one religious

denomination cannot be officially preferred over another.”). Departures

from strict neutrality—even through supposedly benign support for one

faith rather than official disfavor toward another—harm both the

burdened and the nominally benefitted. And to downplay the spiritual

significance of the cross is to misunderstand its essential nature and

abiding power, both for those who revere it and for those who do not. Any

suggestion that the Latin cross transcends denominational lines and

“symbolizes anything other than Christianity may be deemed offensive to

Christians” by denying the cross’s deep spiritual meaning for them. Am.

Humanist Ass’n v. Md.–Nat’l Capital Park & Planning Comm’n, 874 F.3d

195, 207 n.9 (4th Cir. 2017).

30

* * *

The Establishment Clause “guarantees religious liberty and equality

to people of all faiths.” Id. at 204. Disallowing official religious displays

implies no disrespect for religion, for it is not antireligious to say that

matters of faith and belief are best left to individuals, families, and their

houses of worship, free from the heavy hand of government. See Engel, 370

U.S. at 435. “If there is any fixed star in our constitutional constellation, it

is that no official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion.” Barnette, 319

U.S. at 642. Lehigh County is bound to respect the beliefs of all its

citizens; it may not and should not declare an orthodoxy for them.

CONCLUSION

The district court’s judgment should be affirmed; the criticisms of

settled precedent should not.

31

Respectfully submitted,

STEVEN M. FREEMAN DAVID L. BARKEY MELISSA GARLICK

Anti-Defamation League 605 Third Avenue New York, NY 10158 (212) 885-7859

DANIEL MACH American Civil Liberties

Union Foundation 915 15th Street, NW Washington, DC 20005 (202) 675-2330

WITOLD J. WALCZAK ACLU of Pennsylvania 247 Fort Pitt Boulevard,

2d Floor Pittsburgh, PA 15222 (412) 681-7864

AMRITH KAUR JULIAN DARWALL

Sikh Coalition 50 Broad Street, Suite 504 New York, NY 10004 (212) 655-3095

ALISON M. GILL American Atheists, Inc. 718 7th Street, NW Washington, DC 20001 (908) 276-7300

/s/ Richard B. Katskee

RICHARD B. KATSKEE ANDREW L. NELLIS


1310 L Street, NW, Suite 200 Washington, D.C. 20005 (202) 466-3234

JOHNATHAN SMITH SIRINE SHEBAYA NIMRA AZMI

Muslim Advocates P.O. Box 66408 Washington, DC 20035 (202) 897-2622

NICHOLAS J. LITTLE Center for Inquiry 1012 14th Street, NW,

Suite 205 Washington, DC 20005 (202) 733-5279

MONICA L. MILLER DAVID A. NIOSE

American Humanist Association 1821 Jefferson Place, NW Washington, DC 20036 (202) 238-9088

Counsel for Amici Curiae

Date: May 2, 2018

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2. This brief complies with the typeface requirements of Fed. R. App.

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4. A virus check was performed on this brief using Webroot

SecureAnywhere 9.0.19.43. No virus was detected.

5. Lead Counsel Richard B. Katskee is a member of the Bar of this

Court.


Dated May 2, 2018

CERTIFICATE OF SERVICE

I certify that on May 2, 2018, this brief was filed using the Court’s

CM/ECF system. All participants in the case are registered CM/ECF users

and will be served electronically via that system.


1a

APPENDIX OF AMICI CURIAE


Americans United for Separation of Church and State is a national,

nonsectarian public-interest organization that represents more than

125,000 members and supporters across the country. Its mission is to

advance the free-exercise rights of individuals and religious communities

to worship, or not, as they see fit and to preserve the separation of religion

and government as a vital component of democratic governance. Since its

founding in 1947, Americans United has served as a party, as counsel, or

as an amicus curiae in scores of church–state cases decided by the

Supreme Court, this Court, and the federal and state courts nationwide.

American Atheists

American Atheists is a national civil-rights organization that works

to achieve religious equality for all Americans by protecting what Thomas

Jefferson called the “wall of separation” between government and religion

created by the First Amendment. We strive to create an environment

where atheism and atheists are accepted as members of our nation’s

communities and where casual bigotry against our community is seen as

abhorrent and unacceptable. We promote understanding of atheists

2a

through education, outreach, and community-building and work to end the

stigma associated with being an atheist in America.

American Civil Liberties Union and ACLU of Pennsylvania

The American Civil Liberties Union is a nationwide, nonprofit, non-

partisan organization with more than 1.5 million members dedicated to

defending the principles of liberty and equality embodied in the

Constitution and the nation’s civil-rights laws. The ACLU of Pennsylvania

is a state affiliate of the national ACLU. For nearly a century, the ACLU

has been at the forefront of efforts to safeguard the fundamental right to

religious liberty, including the core constitutional protections against

governmental religious favoritism.

American Humanist Association

The American Humanist Association is a national nonprofit

membership organization based in Washington, D.C., with over 236 local

chapters and affiliates in 47 states and the District of Columbia, and over

650,000 members and supporters, including many in Pennsylvania.

Founded in 1941, AHA is the nation’s oldest and largest Humanist

organization. The mission of AHA’s legal center is to protect one of the

most fundamental principles of our democracy: the constitutional mandate

requiring a separation of church and state. AHA has successfully litigated

3a

Establishment Clause cases in federal courts from coast to coast, including

several involving governmental religious displays, and crosses in

particular. E.g., Am. Humanist Ass’n v. Md.–Nat’l Capital Park &

Planning Comm’n, 874 F.3d 195 (4th Cir. 2017); Am. Humanist Ass’n v.

Borough of Roselle Park, No. 2:16-cv-06153-JMV-MF (D.N.J. dismissed

July 25, 2017) (favorable settlement); Kondrat’yev v. City of Pensacola, No.

3:16cv195-RV/CJK, 2017 WL 4334248 (N.D. Fla. June 19, 2017), appeal

docketed, No. 17-13025 (11th Cir. July 6, 2017); Am. Humanist Ass’n v.

Baxter County, 143 F. Supp. 3d 816 (W.D. Ark. 2015); Am. Humanist Ass’n

v. City of Lake Elsinore, No. 5:13-cv-00989-SVW-OPx, 2014 WL 791800

(C.D. Cal. Feb. 25, 2014).

Anti-Defamation League

The Anti-Defamation League was organized in 1913 to advance good

will and mutual understanding among Americans of all creeds and races

and to combat racial, ethnic, and religious prejudice in the United States.

Today, ADL is one of the world’s leading organizations fighting hatred,

bigotry, discrimination, and anti-Semitism. Among ADL’s core beliefs is

strict adherence to the separation of church and state. ADL emphatically

rejects the notion that the separation principle is inimical to religion, and

holds, to the contrary, that a high wall of separation is essential to the

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continued flourishing of religious practice and belief in America, and to the

protection of minority religions and their adherents.

Center for Inquiry

The Center for Inquiry is a nonprofit educational organization

dedicated to promoting a secular society based on reason, science, freedom

of inquiry, and humanist values. Through education, research, publishing,

social services, and other activities, including litigation, CFI encourages

evidence-based inquiry into science, pseudoscience, medicine and health,

religion, and ethics. CFI believes that the separation of church and state is

vital to the maintenance of a free society that allows for a reasoned

exchange of ideas about public policy.

Disciples Center for Public Witness

The Disciples Center for Public Witness informs, connects, and

empowers Disciples of Christ and other people of faith for ecumenical and

interfaith justice advocacy. As a religious movement born on American

soil, Disciples of Christ have from our beginnings had a strong

commitment to religious liberty as guaranteed by the First Amendment to

the Constitution of the United States. In our view, this Amendment not

only guarantees freedom of conscience and religious practice to all people

of faith and people with no faith, but also secures religious symbols

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against political co-option and distortion by federal, state, and local

government.

Disciples Justice Action Network

Disciples Justice Action Network is a multiracial, multiethnic,

multigenerational, and multi-issue network of congregations and

individuals within the Christian Church (Disciples of Christ), all working

together to promote greater justice, peace, and the celebration of diversity

in our church, our society, and our world. DJAN strongly supports the

separation of church and state as the best way to guarantee equal freedom

to all our churches, as well as the houses of worship of other communities

of faith. This strong support leads us to oppose government

misappropriation of the central symbol of the Christian faith for any

purposes whatsoever.

Hadassah, the Women’s Zionist Organization of America, Inc.

Hadassah, the Women’s Zionist Organization of America, Inc.,

founded in 1912, is the largest Jewish and women’s membership

organization in the United States, with over 330,000 Members, Associates,

and supporters nationwide. While traditionally known for its role in

developing and supporting health care and other initiatives in Israel,

Hadassah has a proud history of protecting the rights of women and the

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Jewish community in the United States. Hadassah is a strong supporter of

the strict separation of church and state as critical in preserving the

religious liberty of all Americans, and especially of religious minorities.

Hindu American Foundation

The Hindu American Foundation is a nonprofit advocacy

organization for the Hindu American community. Founded in 2003, HAF’s

work affects a range of issues, from the portrayal of Hinduism in K–12

textbooks to civil and human rights to addressing contemporary problems,

such as environmental protection and interreligious conflict, by applying

Hindu philosophy. HAF educates the public about Hinduism, speaks out

about issues affecting Hindus worldwide, and builds bridges with

institutions and individuals whose work aligns with HAF’s objectives.

HAF’s three areas of focus are education, policy, and community. Since its

inception, the Hindu American Foundation has made church–state

advocacy one of its main areas of focus. From issues of religious

accommodation and religious discrimination to defending the fundamental

constitutional rights of free exercise and the separation of church and

state, HAF has educated Americans at large and the courts about the

impact of such issues on Hindu Americans as well as various aspects of

Hindu belief and practice in the context of religious liberty.

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Interfaith Alliance Foundation

Interfaith Alliance Foundation is a 501(c)(3) nonprofit organization

that celebrates religious freedom by championing individual rights,

promoting policies to protect both religion and democracy, and uniting

diverse voices to challenge extremism. Founded in 1994, Interfaith

Alliance Foundation’s members belong to 75 different faith traditions as

well as to no faith tradition. Interfaith Alliance Foundation has a long

history of working to ensure that religious freedom is a means of

safeguarding the rights of all Americans and is not misused to favor the

rights of some over others.

Muslim Advocates

Muslim Advocates is a national legal-advocacy and educational

organization that works on the front lines of civil rights to guarantee

freedom and justice for Americans of all faiths. Muslim Advocates

advances these objectives through litigation and other legal advocacy,

policy engagement, and civic education. Muslim Advocates also serves as a

legal resource for the American Muslim community, promoting the full

and meaningful participation of Muslims in American public life. The

issues at stake in this case directly relate to Muslim Advocates’ work

fighting for civil-rights protections for American Muslim communities.

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National Council of Churches

The National Council of Churches is a diverse covenant community

of 38 Christian denominations comprising more than 30 million people in

over 100,000 congregations, from Protestant, Anglican, Orthodox,

Evangelical, historic African-American, and Living Peace traditions. Like

Dr. Martin Luther King Jr., we believe that the church should not be the

master of the state nor should it be the servant of the state. Recognizing

that religious freedom is best served when government does not express a

preference for any particular denomination and that the sacred symbols of

faith should never be sullied by being put to political uses, the National

Council of Churches has always advocated for a healthy separation of

church and state.

National Council of Jewish Women, Inc.

The National Council of Jewish Women is a grassroots organization

of 90,000 volunteers and advocates who turn progressive ideals into action.

Inspired by Jewish values, NCJW strives for social justice by improving

the quality of life for women, children, and families and by safeguarding

individual rights and freedoms. NCJW’s Principles and Resolutions state

that “Religious liberty and the separation of religion and state are

constitutional principles that must be protected and preserved in order to

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maintain our democratic society.” NCJW resolves to work for the

enactment, enforcement, and preservation of laws and regulations that

protect civil rights and individual liberties for all. Consistent with our

Principles and Resolutions, NCJW joins this brief.

Sikh Coalition

The Sikh Coalition is a community-based civil-rights organization

that defends civil liberties, including religious freedom, for all Americans.

Our mission is to promote educational awareness and advocacy, and to

provide legal representation in moving toward a world in which Sikhs and

other religious minorities may freely practice their faith without bias or

discrimination. The Sikh Coalition is the largest community-based Sikh

civil-rights organization in the United States. Since its inception on

September 11, 2001, the Sikh Coalition has worked to defend civil rights

and liberties for all people, to empower the Sikh community, to create an

environment where Sikhs can lead a dignified life unhindered by bias or

discrimination, and to educate the broader community about Sikhism in

order to promote cultural understanding and diversity. The Sikh Coalition

has vindicated the rights of numerous Sikh Americans subjected to bias

and discrimination because of their faith. Ensuring the rights of religious

and other minorities is a cornerstone of the Sikh Coalition’s work. The

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Sikh Coalition joins this amicus brief in the belief that the Establishment

Clause is an indispensable safeguard for religious-minority communities.

We believe strongly that Sikh Americans across the country have a vital

interest in the separation of church and state.

Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism

The Union for Reform Judaism, whose 900 congregations across

North America includes 1.5 million Reform Jews, the Central Conference

of American Rabbis, whose membership includes more than 2000 Reform

rabbis, the Women of Reform Judaism, which represents more than 65,000

women in nearly 500 women’s groups in North America and around the

world, and the Men of Reform Judaism come to this issue out of our long-

standing commitment to the principle of separation of church and state,

believing that the First Amendment to the Constitution is the bulwark of

religious freedom and interfaith amity. The concept of separation of church

and state has lifted up American Jewry, as well as other religious

minorities, providing more protections, rights, and opportunities than

have been known anywhere else throughout history. The prominent

display of religious symbols by government threatens the principle of

separation of church and state, which is indispensable for the preservation

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of that spirit of religious liberty which is a unique blessing of American

democracy.

in the united states court of appeals for the third … may 18.pdf · no. 5:16-cv-04504-egs, hon....

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